Conviction for Possession or Sale of Meth Can No Longer Lead to Deportation In The Ninth Circuit

In August 29, 2018
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The Ninth Circuit Court of Appeals continues to get it right on immigration.

In Lorenzo v. Sessions, the Ninth Circuit held today that a conviction for either H.S. 11378 (unlawful to possess controlled substance for sale) or H.S. 11379 (unlawful to sell or to transport controlled substance for sale) is not an aggravated felony drug offense that can render a lawful permanent resident deportable from the United States.

This is due to the act that the California definition of methamphetamine under Section 11055 is over-broad as it includes both “geometric” and “optical” isomers of whereas the federal definition under the Controlled Substance Act only includes “optical” isomers, and not geometric. This means that the minimum conduct required to violate the state statute would be a conviction for using the geometric isomer of the drug. Whether or not the individual in this case did that is entirely irrelevant so long as there is a realistic possibility that California convicts people who carry for sale or transport controlled substances made from geometric isomers. Hence,the Ninth Circuit found that the California definition of methamphetamine is broader than the federal definition. Given that the state statute was overbroad when compared to the federal generic offense, the petitioner in this case was not removable from the United States 

The Ninth Court also held that the statute was not divisible because geometric and optical isomers of methamphetamine are alternative means of committing a single offense, not alternative elements of committing several offenses.

All this is to say that lawful permanent residents who have convictions for either H.S. 11378 or H.S. 11379 in California can no longer be deported for those crimes if their case arises in the Ninth Circuit. Individuals in removal proceedings should check their “Notice to Appear” and can challenge their removability based on this case.

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